Georges River Council v Tyre Nation Pty Ltd [2020] NSWLEC 172

Land and Environment Court New South Wales

Medium Neutral Citation: Georges River Council v Tyre Nation Pty Ltd [2020] NSWLEC 172 Hearing dates: 24 and 29 July; 5, 13 and 14 August; 2, 3, 17, 18 and 29 September; 8 October; 13 and 19 November; supplementary written submissions on 27 November 2020 Date of orders: 24 December 2020 Decision date: 24 December 2020 Jurisdiction: Class 4 Before: Moore J Decision: See declarations and orders at [407] and [408] Catchwords: EXEMPT DEVELOPMENT - change of use of premises - change in mix of building classes pursuant to Building Code of Australia (BCA) - consideration of provisions of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (the SEPP) as the tests for whether change of use constituted exempt development - necessity for new use to satisfy requirements of the SEPP not only when the change of use occurred but on a continuing basis - changes in building classification not a barrier to change of use being exempt development - SEPP set fire safety requirements that must be satisfied - fire safety requirements not satisfied at the time of change of use and continue to remain unsatisfied - new use was not and is not exempt development - requirement that new use be compliant with hours of operation condition in any development consent for earlier use - consideration of whether a statement by an employee of the present operator constituted an adducible admission demonstrating that the hours of operation breached the condition of the earlier development consent - statement satisfies requirements of s 87 of the Evidence Act 1995 (NSW) so as to constitute an admission - changed use operating in breach of hours of operation condition of prior development consent - second basis for concluding that the change of use was not exempt development at the time of the hearing - new use requires development consent to be permitted to continue - declarations and orders appropriate DISCRETION - tenanted premises used as tyre storage facility - consideration of whether tenant's tyre storage activities should be permitted to continue in order to permit lodgement of a development application to regularise this use of the premises- appropriate to provide an opportunity to seek development consent to permit continuation of present use - necessity for interim and ongoing fire safety improvements - orders provide for implementation of remedial works agreed to by fire safety experts - orders also provide for additional interim fire safety measures pending determination of development application - appropriate to suspend order requiring cessation of present use pending determination of development application to regularise the present use FIRE SAFETY ORDER - Fire Safety Order served on the owner of the premises - remedial fire safety works proposed by the order differ from those agreed as necessary by the fire safety experts in the proceedings - appropriate to make a declaration that the owner of the premises had not complied with the terms of the Fire Safety Order - because fire safety upgrade works and interim fire safety operational arrangements to be imposed by orders in these proceedings, appropriate to direct that the Council discharge the Fire Safety Order with which the owner has not complied COSTS - Council successful in seeking declaration that the change of use was not exempt development - Council successful in obtaining orders for a range of agreed remedial fire safety works and interim fire safety operational conditions pending determination of a development application to continue the use - costs to follow the event - costs to be ordered jointly and severally against the tenant and the owner of the premises Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.2, 9.45, 9.46 Evidence Act 1995 (ACT), s 87 Evidence Act 1995 (NSW), s 87 Kogarah Local Environmental Plan 2012 Land and Environment Court Act 1979, s 20 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Cases Cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 Commonwealth of Australia v Helicopter Resources Pty Ltd [2020] HCA 16 Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180 Refina Pty Ltd v Binnie [2009] NSWSC 311 Ross v Lane Cove Council (2014) 199 LGERA 298; [2014] NSWCA 50 Terrace Tower Holdings v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289 Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591; [2000] HCA 11 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 Texts Cited: COVID-19 Pandemic Arrangements Policy "Guideline for bulk storage of rubber tyres" (version 03 dated 5 December 2014) in a series of Fire Safety Guidelines published by NSW Fire and Rescue Category: Principal judgment Parties: Georges River Council (Applicant) Tyre Nation Pty Ltd (First Respondent) Fardous and Saab Pty Ltd (Second Respondent) Representation: Counsel: Mr S Goodman SC/Mr M Astill, barrister (Applicant) Mr T Hale SC/Mr I Leong, barrister (First Respondent) Ms J Reid, barrister (Second Respondent)